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Sunday, December 30, 2012

A blog reader recently raised the issue of association boards who charge fees for certain community services but only against owners who, in the board's estimation, "can afford it" while discounting or writing off those fees for others. While there is no reasonable debate that such a practive would be contrary to both the shared ownership statutes and most associations' governing documents, the question made me ponder just how often volunteer boards engage in the typical exercise of trying to figure out who are the "haves and have nots" in a community.

In my blog reader's HOA, the board decided to clean out the french drains in the community but only sent bills to the homeowners they knew could afford it. When I first read the email, I wasn't certain of the accuracy of the tale but upon further reflection, is such board logic really any different than employers who sometimes allow external factors to determine which of their employees "need" a bonus or salary increase more than others? That logic generally falls along these lines: "Susan is a single mother of two"; "Bob is a young, single guy"; or "Sally is close to retirement". We'd like to think that these kinds of decisions are based solely on merit but we all know the reality is quite different.

Is this selectivity practice in an association setting confined solely to this reader's community or is it more widespread than we may think? Some people will undoubtedly argue that a board can and should seek to help owners in need by leveling the playing field while others will argue just as vehemently that an association board does not have and should not have the latitude to count their members' money in this fashion.

How many of you have seen these kinds of decisions made in your community and what was the result? How many blog readers have been grateful or angry to be on the receiving end of this kind of disparate treatment? How many blog readers have served on a board that made decisions about who should pay and who should not when it came to certain community services?

Monday, December 24, 2012

I remember the first time I really got to know most of my neighbors in my Broward County homeowners' association. We were in the process of being wooed by a very large telecommunications company who wanted to convince us how swell it would be to have a 75-foot cell phone tower disguised as a giant flagpole with a car dealership-type flag directly adjacent to our community's entrance.

Despite the free cookies and large Chesire cat grins maintained achingly by the cell company ambassadors, none of us were buying into this vision. Why was my community not enthralled with the pitch? For some of us, our concerns centered on the aesthetics of viewing the unsightly structure on our daily departure and re-entry to the community. For others, their opposition stemmed from perceived health risks and a general outrage that big business was too lazy to situate a commercial structure in a more appropriate commercial location. Regardless of our individual reasons, we quickly got to know each other, got organized and the association hired counsel to fight the placement of this structure in a residential neighborhood.

Naturally, the cell phone company had their legal counsel try to bully and badger us but we were successful in our fight and the cell tower was ultimately located in a commercial location. I hadn't thought about that battle for quite some time until yesterday's front page article on the cell tower debate heading to the Florida Supreme Court. Apparently all our smartphones, tablets and other gadgets require a lot of juice and the cell phone companies would have us believe that the only space left to power them up is in or near our private residential communities and parks. The outcome of that case might see a lot more giant flagpoles and fake pine trees popping up in places they are not wanted.

While I enjoy my share of electronic gadgetry, I would undertake the battle again if my private residential community was in the crosshairs of big business. It will be interesting to see if other affected associations engage on this issue and follow a similar path to the one my community took. If nothing else, a common enemy can bring a warring community closer together than anything else. We still have neighbors who remain friendly until today because they put aside petty squabbles once they found themselves on the same side of the cell tower battle lines. Tecnhology is great but to most people, their homes are sacred. To read more on the Sun Sentinel cell tower article, click here: http://www.menafn.com/menafn/41368fe5-aed9-44a6-8177-6ad41940b33c/Fights-over-cell-towers-could-affect-service?src=main

Monday, December 17, 2012

The Federal Trade Commission estimates that as many as nine million Americans have their identity stolen each year. Yes, you read that correctly...nine million and that number is growing!

None of us are truly insulated from the possibility of having our identities stolen unless we refuse to purchase items by check or credit card and never venture out of the house to the doctor's office or other location where our private information may be required. However, for those of us living in community associations, the threat may be even greater, particularly if sensitive information was gathered during the approval process and such information is not destroyed or, at a minimum, safeguarded.

Some but not all associations do run background and even credit checks on potential purchasers and renters in their communities. Often, a social security number, date of birth and enough other information to effectively steal an identity is requested on the application. The association uses this information to presumably undertake its due diligence and determine if the renter or purchaser poses any sort of real or financial threat to the community.

Assuming the association's governing documents provide the board with the authority to perform such scrutiny, the real concern then becomes what happens with that sensitive information provided by the purchaser or renter? Is it immediately shredded or is it tossed in the garbage where it can possibly be retrieved by an identity thief? If it is not destroyed, where is it stored and who has access to it? Is the information kept under lock and key with only limited access by a defined group of people or is it tossed in a drawer and no further thought given to its existence?

As the identity theft crisis continues to grow, boards and managers who come into contact with sensitive information must start asking the foregoing questions and creating useful protocol to ward off a potential problem. Individuals applying to live in or rent in a community association should inquire about how their personal information will be handled both during the approval process and afterwards.

Victims of identity theft spend countless hours and real dollars trying to clear their credit history and correct their financial resources. Horror stories abound about the steps needed to pick up the pieces in the most drastic identity theft scenarios. As a result, many insurance companies are now offering relatively inexpensive identity theft endorsements to standard homeowners' and renters' policies. Homeowners should ask their insurance agents about the benefits of this coverage and the costs. Boards who collect sensitive information should similarly speak to their insurance agents about what they can do to protect themselves and their residents from an identity theft incident.

It's never too soon to start thinking about ways to protect yourself and your community from this insidious problem.

Monday, December 10, 2012

Last night I attended the Aerosmith concert at the BB&T Center with my husband and some friends. In addition to being amazed that this group, and particularly its lead singer, is still rocking as strongly as ever, I left with my ears ringing. My husband, however, wasn't phased at all by the noise.

It got me thinking about some of the noise complaints we receive from folks in our communities. How often have noise complaints arisen in your community and how are they addressed? Every set of governing documents I have ever reviewed (regardless of the community type) contains a general nuisance clause. Many specify noise issues but all refer to the members' quiet enjoyment of their property being disturbed as an element of a nuisance.

Some noise issues are related to hard surfaces being installed without proper soundproofing and in areas that require noise absorbent material in order to safeguard the neighbors below. When that occurs, even normal daily activities resonate with more force than normal. Other times, the source of the problem is a resident's unwillingness to moderate the decibel level of their television, radio or other device. Some noise issues arise from pets left alone during the day, domestic disputes, excessive partying and occasionally, the noise is designed specifically to irritate a neighbor or neighbors where the community has become a battleground of sorts.

Sometimes, noise issues can and should be resolved between neighbors without bringing the association into the equation. When an owner does contact the association about a nuisance generated by noise, the association's first response should be to undertake some due diligence to determine if the noise has risen to the level of a general nuisance as defined under the governing documents and common law. These noise issues in a community can become complicated when the person making the complaint is perhaps more sensitive to decibel levels than are his or her neighbors. If none of the neighbors surrounding the unit/home in question, it is more difficult for the association to establish that the noise has risen to the level of a general nuisance. Moreover, sitting between a Hatfield and McCoy feud is an uncomfortable position for any board. This becomes even more vexing when one of the board members or perhaps even the board president is a Hatfield or a McCoy. Naturally, local ordinances on noise can be consulted to determine whether or not the noise in question violates municipal or county regulations.

So let me ask you again, how many noise complaints have arisen in your community and how did you handle them? What, can't hear me over the din?

Sunday, December 2, 2012

At every one of our Board Member Boot Camps, I ask those board members in attendance whether they advised their members that they were spending the better part of their Saturday at an intensive board member training session. In a packed room, only one or two hands are typically raised.

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We often surmise why boards don't communicate the less than positive things they do but why wouldn't board members share with their members the amount of time they spend performing their duties on behalf of the community?

Boards often assume incorrectly that their members know about the number of hours they spend fulfilling their board duties. Discussions that take place at a meeting don't often reveal the hours of preparation that led up to that meeting. Moreover, as many of you already know, far too many members don't attend meetings and even fewer read the minutes of those meetings. How then can most association members have any sort of realistic idea of the time their board spends (or doesn't spend) to actually operate and administer the community? Why do most boards overlook the power of consistent and timely communication?

There is probably little harm and much benefit that could be accomplished in advising your members about time spent in the following manner:

-Hours spent attending a board member certification class

-Hours spent attending other educational classes designed to give you tools to assist your community

-Hours spent maintaining the community website, newsletter and other communications portals.

Some boards do choose to send out a year-end summary and have been criticized for "electioneering activity". My recommendation is that boards should be communicating how they spend their time year-round and not just when elections are around the corner. Serving on a highly functioning board of directors requires quite an outlay of time and energy. Boards shouldn't assume that members know the amount of time being spent on their behalf. The fact is that most members don't spend much time thinking about the board or its activities unless something is terribly amiss in the community or the members are being asked to write a check.

Of course, if your board does start communicating about time spent, it goes without saying that your communications must be factual rather than boastful and designed to keep your members informed rather than simply to keep you on the board.

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This blog is intended for general informational purposes only and is not intended to offer legal advice in any form whatsoever. Blog readers are urged to consult their own legal counsel to obtain specific legal advice. The blog author reserves the right to answer or decline to answer any comments. Any answers given to blog comments do not constitute legal advice nor do they create an attorney-client relationship. Offensive or defamatory comments will be removed.